Why Adversarial Hearings Are Important: Rulings Change When The Other Side Is Heard

from the let-them-be-heard dept

We already wrote about the judge's ruling saying that Chitika was not liable for running ads on a site that linked to some allegedly infringing material, but there was a separate point brought out by the case -- and by Eric Goldman's analysis, that I wanted to highlight. As we noted, in that case, a court said that Chitika shouldn't be liable, because it was unaware of the infringement. But, the thing is, this is the second ruling in this case. The original ruling, back in January was different. It ordered the ad networks Chitika and Clicksor to freeze all money for the site and stop serving ads. But all of that was done without Chitika's participation in the case. In other words, no adversarial hearing.

Once Chitika got involved, the ruling flipped almost entirely. Or, as Goldman summarizes:

But hold on a second. The court's January order was based on ex parte proceedings. Chitika subsequently showed up to contest the case, and surprise! The court reaches a different result after adversarial proceedings. Let's hear it for due process!!! YEAH!

We hear all the time from defenders of ICE domain seizures and SOPA/PIPA that there is due process "because there's a judge involved." But that's not due process. If one of the key parties impacted by the lawsuit is not heard from it's not due process at all. True due process means you hear from those actually impacted. And, as we see in this case, it can make a pretty big difference.

Re: But...but piracy!

I am glad this subect is getting so much attention here

SOPA is the single biggest threat to the internet as we know it since it's inception so I am glad to see you giving it so much coverage. The more you dig into it, the more reasons you find for this to be voted down. I just hope that some in congress are reading this site and others and realizing what horrible legislation this really is.

But Mike that's the point of SOPA, we don't want other voices to be heard! If other voices get heard in the court of law then *gasp* justice might actually happen! We just want to bankrupt and censor anyone we don't like with minimal effort on our part.

You know the saying that the market will punish you if you do something wrong in business? Well we (Hollywood) want to be declared the market thanks to SOPA!

Isn't that the intended goal

Aren't the copyright holders looking for exactly that? They have been loosing in courts in many cases. If they can begin the choking process on starving sites for money even before a hearing can be scheduled they are all ready one step ahead. Not having to involve the courts makes puts the advantage on the side of the plaintiff rather than them being on equal footing.

Justice Delayed = Justice Denied

We hear all the time from defenders of ICE domain seizures and SOPA/PIPA that there is due process "because there's a judge involved." But that's not due process. If one of the key parties impacted by the lawsuit is not heard from it's not due process at all. True due process means you hear from those actually impacted.

And what do we do in the meantime? Sit on our hands until the opposing party decides to show up? Do the rights of those who have legitimate claims not matter?

Yes, due process is served when both sides are given the opportunity to be heard. But depending on the circumstances, that opportunity can be given before or after a particular court order. In cases where the legitimate rights of a property holder are being infringed such that they suffer continuous harm as each day goes by, it makes sense to assess the claims of the claimant ex parte and adjudicate them before giving the adversary an opportunity to be heard. That way, the rights of the property holder are not being prejudiced by the inaction of the adversary. Thereafter, the adversary (who now has an incentive to be heard as early as possible) can present its case for why the claimant should be denied relief.

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And yet, people charged with crimes in this country are commonly arrested prior to arraignment and a bail hearing, and sometimes jailed prior to trial. Is that wrong too?

Furthermore, ICE is not charging anyone with a crime; it is merely seizing property that it believes is being wrongfully held by the adversary. Thus, no one is being deemed "guilty" or "not guilty" in these proceedings. The property is merely being withheld by the government until a proper adjudication can take place.

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So, if I think your car is wrongly held by you, the police should be able to seize it until... whenever? Or should you get the benefit of the doubt?

Have you never reported a stolen car before? You do realize that when you do, the police then go search for the car in question, right? And if the police find it, they typically do not let the driver of the car continue to drive it. Otherwise that would exacerbate the harm suffered by the rightful owner.

Or is this wrong? Should the police just let the driver of the allegedly stolen car continue to drive it? Should the police allow for the possibility that the driver may take the car to a chop shop or otherwise destroy the car? Is that more justified to you?

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That isn't what this is, though. If you want to use the car analogies (and I despise them with a passion), this is your neighbor two streets over seeing your car that looks like his and reporting your car stolen.

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That isn't what this is, though. If you want to use the car analogies (and I despise them with a passion), this is your neighbor two streets over seeing your car that looks like his and reporting your car stolen.

Something tells me that the police are not going to seize on those facts alone. But if they do, then it's a poor job on the police's part. However, that's not justification for forbidding the police from acting expediently in detaining an allegedly stolen car under normal circumstances when a car is reported stolen.

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This worked so well for drug enforcement in the 80's until 60 minutes had their way with it.

And that is why bail is almost always universally allowed. And please don't compare copy infringement with a real crime. Just because you think the government should give you a monopoly for life doesn't mean the whole country agrees with you.

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So why on earth are the people being punished and having their free speech rights taken away?

Oh give me a break. Selling ads is not free speech worthy of 1st Amendment protection. It's commercial speech done with the purpose of furthering pecuniary interests. That's like saying that false and misleading advertising should be protected under the 1st Amendment. That's horseshit.

ICE is acting at the behest of a court order, which was issued to preserve the rights of an aggrieved property holder. If the defendant has a problem with that, it should take it up with the complainant.

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Does that matter?

It matters a great deal.

If someone is charged with a crime, then there has been some level of scrutiny gone over the evidence, and multiple parties (for example, the police and district attorneys) agree that the evidence is sufficient to arrest and hold him.

On the other hand, accusing someone of a crime requires no evidence (and under SOPA, it doesn't even require someone swearing under penalty of perjury). I could call up the police and say "There's this guy Willton commenting on Techdirt and he deals drugs. Arrest him, seize all his property, then throw him in jail until he gets a trial. And after the trial, if he's innocent, he can have his stuff back." Sound fair to you?

Not according to the Supreme Court. They ruled in effect that money equals speech in regards to paid advertisements during political campaigns.

ICE is acting at the behest of a court order, which was issued to preserve the rights of an aggrieved property holder. If the defendant has a problem with that, it should take it up with the complainant.

Since we're referring to ICE's domain seizures here, the court order was ex parte. Also, it took months of effort for Rojadirecta to even find anyone they could complain to about the domain seizure.

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It matters a great deal.

If someone is charged with a crime, then there has been some level of scrutiny gone over the evidence, and multiple parties (for example, the police and district attorneys) agree that the evidence is sufficient to arrest and hold him.

On the other hand, accusing someone of a crime requires no evidence (and under SOPA, it doesn't even require someone swearing under penalty of perjury). I could call up the police and say "There's this guy Willton commenting on Techdirt and he deals drugs. Arrest him, seize all his property, then throw him in jail until he gets a trial. And after the trial, if he's innocent, he can have his stuff back." Sound fair to you?

No, it doesn't. But, again, I'm not discussing the merits of SOPA; I'm discussing the merits of what the judge did IN THIS CASE. SOPA is not a law yet, so whatever SOPA would authorize is immaterial to this case.

Not according to the Supreme Court. They ruled in effect that money equals speech in regards to paid advertisements during political campaigns.

Citizens United is totally inapposite to whether commercial speech is entitled to broad 1st Amendment protections. The paid advertisements in Citizens United were considered political speech, not commercial speech. That is not the case here. And in any event, there's plenty of precedent saying otherwise with regard to copyright and trademark infringement.

Since we're referring to ICE's domain seizures here, the court order was ex parte. Also, it took months of effort for Rojadirecta to even find anyone they could complain to about the domain seizure.

Different case with different circumstances. Rojadirecta's case is not similar to this one.

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It seems you are confusing Criminal 'illegal' acts with Civil 'unlawful' acts.

People forget that something is ONLY unlawful after a court using full due process (procedural fairness/natural justice) states that it is. An ex parte decision (or in rem ) that removes real property has absolutely no due process and is solely based on court procedural rules (bench books etc) and realistically any property should be held in custody by the actual court itself and NOT by the plaintiff otherwise such things as Detinue, Replevin, and/or Trover should be actionable against the original plaintiff, and in the case of a Govt entity doing it 'eminent domain' defences and compensation should be available as well (especially if the Govt entity uses the property for its own purposes afterwards).

But hey, if the USgovt or it's Corporate overlords want to keep up with the unethical and potentially unlawful conduct as I say in previous comments about SOPA etc, the rest of the world will just say "thanks but no thanks" to investing within the US economy. Bad for you US citizens, good for the rest of the +90% of the human population.

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You missed the whole point of this post. During a second hearing where the defendant was actually, you know, able to defend themselves, the ruling went their way. So why should we risk destroying innocent people to get to the guilty? Is that what you are really advocating here?

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You missed the whole point of this post. During a second hearing where the defendant was actually, you know, able to defend themselves, the ruling went their way.

Exactly. Due process was served, and the rights of the defendant were vindicated. What's the problem?

So why should we risk destroying innocent people to get to the guilty? Is that what you are really advocating here?

Would you say the same thing about those charged with violent crimes? Financial crimes? Should Bernie Madoff have been allowed to dispose of his money prior to his criminal trial, or was the government justified in seizing his company's financial accounts beforehand?

Sometimes the rights of the aggrieved and the interest in preventing more irreparable harm from occurring are more important than the rights of the accused.

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The problem is presuming guilt before innocence. If you don't like that concept there are many other countries in the world that would probably be more to your liking.

First, there was no presumption of guilt or innocence. This is a civil proceeding, not a criminal one. Second, the first order in this case was a temporary restraining order, not a permanent one. The order was designed to maintain the status quo until a proper hearing could be had, and lo and behold, one was had. Thirdly, I know of no legal regime that gives inanimate objects rights. People have rights; websites do not.

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You are assuming that the accuser's claim is rightful.

I'm assuming that the judge considered the accuser's claim and deemed the circumstances proper to order a seizure prior to a hearing in order to preserve the accuser's rights. That's typically what happens when a judge issues a TRO. The judge does not necessarily know who is right, but he does know that if his initial impression is wrong, greater harm would likely occur without the seizure than with one.

Re: ...

"Both parties were allowed to plead their case."

Not at the same time. Or are you ignoring the fact that the recent ruling overrules the first?

I'm not ignoring that. You're ignoring the fact that, after a TRO was issued on January 6th, Chitika was served a summons requireing it to appear at a preliminary injunction hearing to present its defense. According to the judge's preliminary injunction order, Chitika did not submit a brief stating its position and did not show up for the hearing.

Therefore, both parties were given an opportunity to plead their case before the court at a hearing, but only one party decided it was important enough to attend: the plaintiff. If you were the judge, what would you have done?

"Chitika failed to show up."

And you have no guess as to why that is?

Nope, other than the obvious: Chitika did not deem the hearing important enough to attend or at least ask for a continuance. Why, you have some other theory?

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I'm assuming that the judge considered the accuser's claim and deemed the circumstances proper to order a seizure prior to a hearing in order to preserve the accuser's rights.

How can you assume that when there is irrefutable evidence that he did not? When the judge was presented with all the facts, the ruling went in the complete opposite direction. You're being willfully blind.

How can you assume that when there is irrefutable evidence that he did not? When the judge was presented with all the facts, the ruling went in the complete opposite direction. You're being willfully blind.

Really? Where is this "irrefutable" evidence that the judge did not consider the accuser's claim? Where is the "irrefutable" evidence that the judge did not do his job properly?

Just because the judge got it wrong the first time does not mean he failed to do his job. He can only render rulings based on the evidence placed before him, and the evidence at the time, at least to him, pointed in favor of a TRO prior to a hearing on the merits. The defendant failed to defend itself at preliminary injunction hearing, even after being given the opportunity to do so, so the judge issued the preliminary injunction. I can't fault him for that.

If the judge is keeping up with what is happening all over in regards to these types of cases, then he clearly should have looked deeper or waited to rule until he had all the facts.

The judge did not have the luxury of waiting; he had a duty to render judgement based on the evidence placed before him, and the defendant failed to provide any evidence when asked to do so. It's not fair to the other interested parties to force them to wait around until the defendant finds it convenient to respond to a court summons.

If you want to hold all people and all websites responsible for everything that happens on the internet, then the judge clearly screwed up for not keeping up with the relevant happenings in the law.

Have you ever seen a federal district court judge's docket? It's immense, and IP cases like this typically take up a small fraction of his docket. Unless the judge likes IP cases, the likelihood that the judge is "keeping up with the relevant happenings in [IP] law" is low.

And in any event, unless we're talking about new legislation or binding precedent, it is not the judge's responsibility to "keep up with the relevant happenings in the law". Just because some other trial court found a certain way in one case does not mean that he must also in his. It is up to each of the parties in the case to educate the judge as to what the law is in other circuits in order to persuade him to find in its favor. If one party refuses to provide such education (or even show up, for that matter), then that party should not be surprised that the judge renders an unfavorable decision. If anybody screwed up, it's the party who didn't show.

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...Thirdly, I know of no legal regime that gives inanimate objects rights. People have rights; websites do not.

Strawman much? Nice attempt at deflecting the thread, but you are missing the most important part of what many websites are: places for people to interact and participate in their First Amendment right of FREE SPEECH. While the actual code and design of the site is inanimate, the site member's speech is guaranteed by the Constitution. Whether you are capable of making this connection may be dependent on who is cutting your salary checks, but for the majority of Americans, their right to FREE SPEECH is sacrosanct.

And part the most important part of DUE PROCESS is the right of every American citizen to confront their accusers is a court of law with the second most important part being the presumption of innocence prior to an adversarial process in the courts.

While it is true that in cases of violent crime, a suspect may be arrested and detained prior to trial, it is also true that this is a compromise that is included in deference to continued public safety - not as some standard way to deal with violent crime in general. This is an important distinction you ignore completely.

Copyright infringement IS NOT violent crime and no one in the public is threatened by it which means that the above compromise does not apply - period.

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Strawman much? Nice attempt at deflecting the thread, but you are missing the most important part of what many websites are: places for people to interact and participate in their First Amendment right of FREE SPEECH. While the actual code and design of the site is inanimate, the site member's speech is guaranteed by the Constitution. Whether you are capable of making this connection may be dependent on who is cutting your salary checks, but for the majority of Americans, their right to FREE SPEECH is sacrosanct.

Now that's a strawman. Can you tell me if any protected speech being conducted at the site in question? You can bloviate about generalities all you like, but we are talking about a specific case here. If not, then it appears that all those keystrokes about the 1st Amendment were in vain.

And part the most important part of DUE PROCESS is the right of every American citizen to confront their accusers is a court of law with the second most important part being the presumption of innocence prior to an adversarial process in the courts.

Those rights are all based in criminal law and procedure. This is a civil case, not a criminal one.

While it is true that in cases of violent crime, a suspect may be arrested and detained prior to trial, it is also true that this is a compromise that is included in deference to continued public safety - not as some standard way to deal with violent crime in general. This is an important distinction you ignore completely.

It is, but it's also one that the hard-liners regarding seizures don't recognize either. My point is that certain situations are more nuanced and require more careful consideration than that provided by the commentariat here.

Copyright infringement IS NOT violent crime and no one in the public is threatened by it which means that the above compromise does not apply - period.

No kidding. But then again, no one is being arrested for copyright infringement in this case. All that's happening is that a domain name is being temporarily seized.

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Now that's a strawman. Can you tell me if any protected speech being conducted at the site in question? You can bloviate about generalities all you like, but we are talking about a specific case here. If not, then it appears that all those keystrokes about the 1st Amendment were in vain.

What about the advertiser's free speech? As a 4th party to the dispute, they had nothing whatsoever to do with any infringing activity that may or may not have occurred yet they were drawn into court to defend against a ruling that should never have been made against them.

Nice try - try again...

Those rights are all based in criminal law and procedure. This is a civil case, not a criminal one.

You were the one bringing in criminal issues, not me so are you attempting to backpedal or simply trying to deflect again?

It is, but it's also one that the hard-liners regarding seizures don't recognize either. My point is that certain situations are more nuanced and require more careful consideration than that provided by the commentariat here.

Nuanced to the point that these "hardliners" should be given a pass just because they fail to understand the limits of authority spelled out under the Constitution and Bill of Rights? So in your world blinders are a valid defense against the law?

No kidding. But then again, no one is being arrested for copyright infringement in this case. All that's happening is that a domain name is being temporarily seized.

But it IS ok to cause interference with another business, force onto them costs for no reason, and stifle THEIR free speech because the Entertainment industry has a bug up it's collective rear-end because they can't adapt to reality?

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What about the advertiser's free speech? As a 4th party to the dispute, they had nothing whatsoever to do with any infringing activity that may or may not have occurred yet they were drawn into court to defend against a ruling that should never have been made against them.

What about it? What protected speech is the advertiser providing?

If your position is that the advertiser should not have been brought into the case, then that has nothing to do with free speech. That has everything to do with your belief that the plaintiff sued the wrong guy.

You were the one bringing in criminal issues, not me so are you attempting to backpedal or simply trying to deflect again?

I most certainly did not bring in the criminal issues. Someone upthread invoked the "innocent until proven guilty" line. I simply ran with it. In any event, it's not important to the case, as this is not a criminal case.

Nuanced to the point that these "hardliners" should be given a pass just because they fail to understand the limits of authority spelled out under the Constitution and Bill of Rights? So in your world blinders are a valid defense against the law?

When I spoke of "hardliners", I was speaking of the commentariat here that would never allow seizures until after a hearing. Those are the true hardliners: they draw a hard line as to when a seizure may take place based on an inflated view of what the Constitution protects. If anything, the folks here are the ones wearing blinders.

But it IS ok to cause interference with another business, force onto them costs for no reason, and stifle THEIR free speech because the Entertainment industry has a bug up it's collective rear-end because they can't adapt to reality?

If the other business has a problem with that, then it should have shown up to court when it was called upon to present its case.

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Sometimes the rights of the aggrieved and the interest in preventing more irreparable harm from occurring are more important than the rights of the accused.

But the court found, eventually, that there was no aggrieved here and no irreparable harm. Besides, piracy has never been proven to cause any harm much less irreparable harm so reversing the whole innocent until proven guilty concept here is entirely unwarranted.

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I am not biased at all. First off, I don't pirate content of any kind. Second, every industry that is now claiming piracy kills is having record years. The only thing piracy is killing is the gatekeepers and their dying due to pure economics, not due to piracy. And no, its not my opinion, it is based on unbiased studies. Unlike the studies that create unfounded facts and figures, there are actual real reports that show piracy does not cause harm and many reports that show it actually helps.

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I am not biased at all. First off, I don't pirate content of any kind. Second, every industry that is now claiming piracy kills is having record years. The only thing piracy is killing is the gatekeepers and their dying due to pure economics, not due to piracy. And no, its not my opinion, it is based on unbiased studies. Unlike the studies that create unfounded facts and figures, there are actual real reports that show piracy does not cause harm and many reports that show it actually helps.

Says who? You? Mike? Is Mike the only one who can determine whether a study is "unbiased" or a report is an "actual" report?

And by the way, piracy may not be killing a particular industry, but that does not mean it does not inflict irreparable harm thereon. Irreparable harm is the type of harm that cannot be quantified or remedied by mere money damages. Piracy can still irreparably harm a business without shuttering it.

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Just like SOPA can irreparably harm a business without actually charging it with anything, right?

So what you are saying is that it's okay for the industry (copyright/lawyer/banking monopolies) to cause irreparable harm to businesses without allowing them due process, but it's not okay for individuals to deprive those industries of the revenue they think they deserve, or they have been 'irreparably harmed'?

I still don't get it, please explain how Piracy causes irreparable harm to anyone.... And if you are seriously claiming that irreparable harm, "is the type of harm that cannot be quantified or remedied by mere money damages." they why is the industry so hell bent on claiming 'mere money damages' from all the 'lost sales'?

Damn I miss Wierd Harold... at least he was humorous when he contradicted and convoluted himself....

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Just like SOPA can irreparably harm a business without actually charging it with anything, right?

I'm not here to discuss SOPA. SOPA has nothing to do with this case. Stop bringing it up.

So what you are saying is that it's okay for the industry (copyright/lawyer/banking monopolies) to cause irreparable harm to businesses without allowing them due process, but it's not okay for individuals to deprive those industries of the revenue they think they deserve, or they have been 'irreparably harmed'?

Chitika was afforded due process. They chose not to show up at their first opportunity. Courts should not delay action because the adversary does not feel like showing up.

I still don't get it, please explain how Piracy causes irreparable harm to anyone.... And if you are seriously claiming that irreparable harm, "is the type of harm that cannot be quantified or remedied by mere money damages." they why is the industry so hell bent on claiming 'mere money damages' from all the 'lost sales'?

Probably because they want SOME compensation for the harm caused by the piracy. The injunction is designed to prevent future damage from occurring.

Would you prefer that the court just allow the damages to continue to pile up during a court action? Would you prefer to have property rights diminish as a result of delayed action by the court?

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Keep in mind that a police officer is arresting someone they are accusing of a crime, in those cases. When a private party is accusing you of something, nothing is (should be) seized. ICE should not be able to say it wants your stuff without accusing you of a crime and subsequently prosecuting you.

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Keep in mind that a police officer is arresting someone they are accusing of a crime, in those cases. When a private party is accusing you of something, nothing is (should be) seized. ICE should not be able to say it wants your stuff without accusing you of a crime and subsequently prosecuting you.

No? So you disagree with the whole notion of a temporary restraining order or a preliminary injunction? Should an alleged infringer be allowed to continually inflict irreparable harm against a right-holder's interests until a hearing takes place? If so, what incentive does the alleged infringer have to show up for this hearing?

I don't think you understand the purpose of a temporary restraining order. First, it is designed to maintain the status quo and prevent imminent and irreparable harm until a judge can adjudicate the dispute. Second, it is temporary, not permanent. If the alleged infringer ultimately wins, ICE gives back the property.

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Please give up the irreparable harm bit, piracy is not irreparable harm. It is debatable if it is even harm.

Also, the original order did not preserve status quo. It froze the company's accounts and stopped them from serving ads to earn additional revenue. Revenue that was deemed legal. It very well could have put them out of business.

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But it wasn't so there is no point in arguing otherwise.

The judge does not know that ahead of time. Accordingly, the judge has to consider the consequences of whether to issue the TRO prior to a hearing. And the judge believed that issuing the TRO would be less damaging to all parties involved than not issuing one.

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But the accused are not free to present their case until after irreparable harm has been done to their business by the court.

And therein lies the rub: whose rights are more important? What is a judge to do in a case like this? Allow the alleged infringer to continually do harm to the complainant's business, or issue an order that would do harm to the alleged infringer's business?

It all depends on the circumstances, and the judge has to handle each decision on a case-by-case basis. There is no bright-line rule that he can apply.

These are civil actions, correct? Why is there no balance between the opposing parties?

What makes you think that the judge did not undertake a balancing of the equities?

You mean like Rojadirecta? Where it took months for the DOJ to even respond to them, let alone get a hearing date set.

The DOJ is not a party to this case, so I don't see how this is any bit similar to Rojadirecta's case.

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And therein lies the rub: whose rights are more important? What is a judge to do in a case like this? Allow the alleged infringer to continually do harm to the complainant's business, or issue an order that would do harm to the alleged infringer's business?

That's where the problem lies, how can a judge, based on the evidence presented before him, make a fair ruling on only one side of the argument?

It all depends on the circumstances, and the judge has to handle each decision on a case-by-case basis. There is no bright-line rule that he can apply.

That is even a more compelling argument as to why the judge should have all affected parties present.

What makes you think that the judge did not undertake a balancing of the equities?

It's kinda of hard to balance the equities when not all entities are allowed to present their arguments.

The DOJ is not a party to this case, so I don't see how this is any bit similar to Rojadirecta's case.

Ok, fine. But, you argued above that the defendant using delaying tactics could harm the accuser, and in the Rojadirecta case the delaying tactics of the plaintiff is harming the defendant. It's not a one-way street.

That's where the problem lies, how can a judge, based on the evidence presented before him, make a fair ruling on only one side of the argument?

He can't. But when the defendant refuses to defend itself until the 11th hour, what is the judge supposed to do?

That is even a more compelling argument as to why the judge should have all affected parties present.

The judge tried, but he can't make parties to a lawsuit go to court (absent an arrest warrant). The judge held a preliminary injunction hearing after the initial TRO to give Chitika a chance to present its arguments. Chitika never showed up.

It's kinda of hard to balance the equities when not all entities are allowed to present their arguments.

Chitika WAS allowed to present its arguments at the preliminary injunction hearing, which was less than 8 days after the initial seizure. Chitika, however, failed to show up. So what is a judge supposed to do when the defendant does not defend itself?

Ok, fine. But, you argued above that the defendant using delaying tactics could harm the accuser, and in the Rojadirecta case the delaying tactics of the plaintiff is harming the defendant. It's not a one-way street.

Of course not. But I do not see any lack of diligence by the plaintiff in this case. I do see it on the part of the defendant.

I would have to agree that the defendent's action in this specific case didn't seem to help them much.

I am arguing more against in rem civil forfeiture proceedings in general. Yes, I understand that in some situations seize first, ask questions later is needed, to preserve evidence or protect someone or something from further harm.

With domain name seizures, I just don't see the need. Why is it such a problem to notify both parties of the hearing? If the defendant doesn't show then a default judgement is awarded to the plaintiff. It's almost like the plaintiffs are worried about some sort of precedent being set against them, but if the case is strong enough, why worry?

With domain name seizures, I just don't see the need. Why is it such a problem to notify both parties of the hearing? If the defendant doesn't show then a default judgement is awarded to the plaintiff. It's almost like the plaintiffs are worried about some sort of precedent being set against them, but if the case is strong enough, why worry?

Why is it a problem? Because often times, there is no time to do so. TRO's are reserved for emergencies only, and when valuable property rights are at stake, the rights holders want to act immediately to avoid future loss. If a property holder recognizes that harm is being done to him/her, then I do not see why the holder has to go through a waiting period to have his/her legitimate rights vindicated while the harm continues. So, if the case warrants it, the judge issues the TRO, schedules a preliminary injunction hearing, and provides notice to all parties involved.

Because often times, there is no time to do so. TRO's are reserved for emergencies only, and when valuable property rights are at stake, the rights holders want to act immediately to avoid future loss.

400 domain seizures have been enacted. Are you telling me that all of them are emergencies? They're all locked up behind the screen where no one can review them for a future court date that has been undecided. Judging from the fact that copyright holders are making out like bandits based on economic evidence, I find your claims of loss to be highly dubious.

If a property holder recognizes that harm is being done to him/her, then I do not see why the holder has to go through a waiting period to have his/her legitimate rights vindicated while the harm continues.

By all means, they should be able to present evidence of economic hardship before the site is taken down. But no harm has been shown so far

So, if the case warrants it, the judge issues the TRO, schedules a preliminary injunction hearing, and provides notice to all parties involved.

Judging from how the domain seizures have occurred, there is nothing showing actual economic evidence of wrongdoing. Where is your proof that a website's existence is harming a copyright owner?

400 domain seizures have been enacted. Are you telling me that all of them are emergencies?

No. I'm telling you that the ones where a Request for a Temporary Restraining Order was filed, it was deemed an emergency by the plaintiff. Those seizures could also have been the result of a preliminary injunction or a default judgment. You'd have to sort through them to decide which is which.

They're all locked up behind the screen where no one can review them for a future court date that has been undecided.

Yes, unless the defendant decides to push the issue. You'll likely find that few defendants do, however, because they likely believe that they will lose. Chitika is an exception.

By the way, why does it matter that "no one can review them"? Is it your business to do the judge's job for him?

Judging from the fact that copyright holders are making out like bandits based on economic evidence, I find your claims of loss to be highly dubious.

I'm not the one making claims to losses; the plaintiffs are. If you find them so dubious, question them. Or better yet, look through the cases where such claims are made. The court documents in such cases are available to the public on PACER.

By all means, they should be able to present evidence of economic hardship before the site is taken down. But no harm has been shown so far

You sure about that? Did you read the papers submitted by the plaintiffs in these cases? All of them? Or are you just presuming that these plaintiffs are pulling the wool over the eyes of the judiciary?

Judging from how the domain seizures have occurred, there is nothing showing actual economic evidence of wrongdoing.

You mean nothing to your satisfaction. Something tells me that you are hardly an unbiased judge in that respect.

Where is your proof that a website's existence is harming a copyright owner?

Why don't you ask the copyright owner itself? Check the substantive documents they submit in these cases. Do your own due diligence and quit asking me to do it.

No. I'm telling you that the ones where a Request for a Temporary Restraining Order was filed, it was deemed an emergency by the plaintiff. Those seizures could also have been the result of a preliminary injunction or a default judgment. You'd have to sort through them to decide which is which.

Then why have there been no hearings from the government for the ones happening a year and a half ago? If they're temporary, *surely* a year and a half of waiting to have an adversarial hearing is a little long in the tooth.

Yes, unless the defendant decides to push the issue. You'll likely find that few defendants do, however, because they likely believe that they will lose. Chitika is an exception.

So first you're admitting that the TRO is supposed to be temporary, but now, if they push the issue, they get their due process? Also, who's saying they'll lose if they don't even get a chance to be heard in the first place?

By the way, why does it matter that "no one can review them"? Is it your business to do the judge's job for him?

By the warrants issued by the ICE, they were locked up to preserve evidence. Which makes no sense. The domains are given a new place to call home, and ICE has the task of trying to jail people for a civil offense. Isn't it the job of the DoJ to try to follow the rules instead of bending them?

I'm not the one making claims to losses; the plaintiffs are. If you find them so dubious, question them. Or better yet, look through the cases where such claims are made. The court documents in such cases are available to the public on PACER.

You're defending the plaintiff's claims of economic losses and damages, when there are plenty of court cases and evidence proving otherwise. If their claims don't pan out before a judicial hearing (that isn't one sided) why should those same plaintiffs have the ability to cause actual financial hardship to either a known competitor or someone relying on money from their payment processors? Your argument makes no sense because it hinges on the plaintiffs being saints, which has been proven countless times to be a false argument.

You mean nothing to your satisfaction. Something tells me that you are hardly an unbiased judge in that respect.

I've read the warrants and also noted the problems that have arisen from the civil procedures and their vague statements. I question because they are bending rules to a legal grey area where their actions do not follow constitutional nor ethical guidelines. I may have a bias against governmental interference but that hardly means I have clouded judgement in what is right and wrong with either domain seizures or SOPA.

Check the substantive documents they submit in these cases. Do your own due diligence and quit asking me to do it.

No. If you're the one supporting a plaintiff, then you should be able to do your own due diligence into why they're wrong with facts to back up your statements. I have already read the statements and noted the exceptions that copyright law is currently taking in the enforcement area. It does not represent what most people like. It doesn't represent innovation nor increased knowledge and learning. It represents a select number of people trying to profit by criminalizing behavior that most people actually think is nothing wrong.

If you have no proof otherwise, then you shouldn't be trying to state falsities.

Then why have there been no hearings from the government for the ones happening a year and a half ago? If they're temporary, *surely* a year and a half of waiting to have an adversarial hearing is a little long in the tooth.

I don't know. Why don't you tell me? You appear to have a better handle on the facts of these cases. Perhaps you can look up their statuses in PACER and find out. Better yet, tell us where the cases are and what their docket numbers are, and we can look for ourselves.

So first you're admitting that the TRO is supposed to be temporary, but now, if they push the issue, they get their due process? Also, who's saying they'll lose if they don't even get a chance to be heard in the first place?

As they say, you can't expect to get anything if you don't ask for it.

And how do you know that these parties are not getting a chance to be heard? Just because a party did not participate in a hearing does not mean that it was not given the opportunity to do so. Where's your proof that these entities are not being given opportunities to be heard?

By the warrants issued by the ICE, they were locked up to preserve evidence. Which makes no sense. The domains are given a new place to call home, and ICE has the task of trying to jail people for a civil offense. Isn't it the job of the DoJ to try to follow the rules instead of bending them?

You're not making sense. Where is ICE attempting to put people in jail? What are the rules that you claim the DOJ is not following? Where can I find these rules? And what does any of this have to do with seizing domain names?

You're defending the plaintiff's claims of economic losses and damages, when there are plenty of court cases and evidence proving otherwise.

Really? Show me.

If their claims don't pan out before a judicial hearing (that isn't one sided) why should those same plaintiffs have the ability to cause actual financial hardship to either a known competitor or someone relying on money from their payment processors? Your argument makes no sense because it hinges on the plaintiffs being saints, which has been proven countless times to be a false argument.

How do you know that the plaintiffs are the same in each case? And what makes you think that the facts are the same in each case?

I've read the warrants and also noted the problems that have arisen from the civil procedures and their vague statements. I question because they are bending rules to a legal grey area where their actions do not follow constitutional nor ethical guidelines. I may have a bias against governmental interference but that hardly means I have clouded judgement in what is right and wrong with either domain seizures or SOPA.

What are the problems? Give me some examples, please. Show me how these warrants are not following constitutional or ethical guidelines. Prove your case.

No. If you're the one supporting a plaintiff, then you should be able to do your own due diligence into why they're wrong with facts to back up your statements. I have already read the statements and noted the exceptions that copyright law is currently taking in the enforcement area. It does not represent what most people like. It doesn't represent innovation nor increased knowledge and learning. It represents a select number of people trying to profit by criminalizing behavior that most people actually think is nothing wrong.

First of all, I haven't taken a position as to any particular plaintiff's claims are meritorious, particularly because I don't know who the friggin' plaintiffs are. The only case I have some awareness of is this one. It's pretty hard for me to defend a particular plaintiff when I don't know the identity of said plaintiff.

Second, you clearly know more about these cases than I do, so perhaps you should give us an example that we can examine.

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I don't know. Why don't you tell me? You appear to have a better handle on the facts of these cases. Perhaps you can look up their statuses in PACER and find out. Better yet, tell us where the cases are and what their docket numbers are, and we can look for ourselves.

IANAL. Judging from your comments, you seem to be someone that at least follows PACER in a professional manner. But I've just noted the inaccuracies in my past posts as well as the affidavits when the domain seizures come up. You might have the advantage on knowledge, because I don't look at PACER in that regard.

And how do you know that these parties are not getting a chance to be heard? Just because a party did not participate in a hearing does not mean that it was not given the opportunity to do so. Where's your proof that these entities are not being given opportunities to be heard?

For the domain seizures specifically, none of the domains had a chance to be heard specifically. The DoJ was stalling in regards to information, with the Rojadirecta case forcing them to take a stance (as I explain in a link above).

Where is ICE attempting to put people in jail?

Ninjavideo (4 out of 5 so far), Bryan McCarthy, and Mohamed Ali (19) for streaming content.

What are the rules that you claim the DOJ is not following?

The Asset Forfeiture Procedures are the main ones being stretched. In a nutshell, ICE is treating copyright infringement as a drug trafficking crime.

And what does any of this have to do with seizing domain names?

This has to do with the rules that ICE "follows" in taking on criminal copyright infringement cases. However, copyright infringement is supposed to be a civil offense, not a criminal and their arguments for criminal copyright infringement have yet to make any sense on closer inspection.

Really? Show me.

The best place is Media piracy in Emerging Economies, which effectively details the problem of trying to stop copying as a fruitless endeavor in Russia, Brazil, Bolivia (which has no copyright law), the US, and India among a few other nations.

There are a number of studies in movies, music, and games benefit from file sharing. Even publishers profit from filesharing. Further, if you want to go into government studies, I can do that, where more and more studies have found a positive to filesharing, not a negative.

Show me how these warrants are not following constitutional or ethical guidelines.

First of all, I haven't taken a position as to any particular plaintiff's claims are meritorious, particularly because I don't know who the friggin' plaintiffs are.

In the domain seizures, it's not hard to figure out who can go to the ICE and order a domain seized without a hearing. The NFL, MPAA, and the UFC are the most aggressive in taking down domains through this process at the current time. The ICE has also come out and admitted they are the police force of Disney (who had the Ninjavideo site seized from the outset) who held the press conference after the initial raid on July 29th of last year. And with the recent domain seizures, it's not hard to pin those sites on the MPAA since a few were places such as 007disk.net.

Second, you clearly know more about these cases than I do, so perhaps you should give us an example that we can examine.

Odd, I thought you were following the domain seizures as they occurred...

Re: Re: Re: Re: Re: Justice Delayed = Justice Denied

Re: Re: Re: Justice Delayed = Justice Denied

I don't think that Bernie Madoff would've had his assets seized based only on one accusation, the same way you aren't thrown in jail by being merely accused of killing someone.

There is a process for these things - a process SOPA supporters want to eliminate for being "too cumbersome". Namely, there must be a good amount of evidence that allowing the alleged criminals to retain their assets (or their freedom) will allow them to continue to cause harm.

SOPA requires none of this. Only a declaration that you believe "in good faith" that a website is ruining your life and needs to be seized. This would never hold up to common sense in meatspace, why are we allowing it to happen in cyberspace?

Notice that I am not against the whole taking down sites thing. They should be taken down and those that are in charge of the sites should be arrested (or fined, depending on the applicably law) if it is proven that they are guilty. But we shouldn't trample the rules to achieve this. If we do that, we are setting up one seriously slippery slope.

Re: Justice Delayed = Justice Denied

ex parte ruilings have a nasty history of getting overturned in whole or in part when the party absent arrives at a later date so the court can hear their arguments.

Your statment indicates that you feel that the plaintiff is right in every detail when they allege infringment. In this case they were wrong, The ad server was an "innocent bystander" in this. The plantiff hasn't followed due process by issuing a "cease and desist" letter or any other form of warning or notice that the ad server stop serving ads to the site. They just assumed they must have known and went ahead. Right there the plaintiff didn't follow due process. You're supposed to try to settle before taking up court time.

I don't think the ad server would have fought all that hard to protect $17 a month. They may have responded to the publisher saying they didn't know but were taking down their ads, thanking them for the heads up and that would have been the end of it.

Instead the publisher went directly to court, in the absence of the ad server and got the ruling they wanted. When the ad server showed up the ruling was, for all practical purposes, overturned.

Incidentally, as I understand that India is a signatory to the Berne Copyright Convention, they could have taken the case to Delhi as well without extraterritorial imposition of US laws and court rulings. Might as well cover all the bases, also known as due process.

Back to the case in question. The plaintiff doesn't appear to have had an actionable case to begin with. At least as far as the ad server's enabling infringement is concerned.

One of the reasons ex parte rulings and injunctions are so frequently overturned is that the plaintiff has rushed off to court with an incomplete case, told only their side of the story and when the defendant appears either after appeal or of the scheduled full ruling date to present their side the holes in the case appear. To that end rush to ex parte often ends up wasting valuable court time to only determine the plaintiff had no case to start with because they don't have the necessary evidence for action (mere suspicion is this case aka "but they HAD to know!) to begin with, hadn't followed the rules and hadn't tried to settle before appearing in court.

As for printers of textbooks, they've been pricing in "piracy" for years. They've long known that, in some subjects, students will line up in front of photocopiers to copy entire books, that those finished the course that requires the book often sell them to those entering the course (loss of sale though not traditionally thought of as infringement as no copying has taken place) or in the case of very expensive textbooks simple theft (as in the physical act of stealing the book).

In civil cases both defendant and plaintiff have incentive to appear on the scheduled date. If one doesn't appear they lose -- pure and simple. Unless there is a very good reason they weren't there, and I mean more than a case of the sniffles, only a wildly out of line ruling can be appealed, at least in most provinces in Canada. So your argument that the defendant can delay a hearing simply by not showing up is false. And. in this case, there were no damages to relieve once both parties were allowed to appear so it was the defendant, not the plaintiff who suffered.
Also, courts have precious little patience with parties to a case who try to delay things by simply not appearing. No patience at all.

"Due process" in civil matters can mean a letter was mailed.

That's deemed sufficient notice. Should be a registered letter, but even that's not required.

Don't conflate the full panoply of civil rights due "natural persons" with what an artificial entity gets by societal permission.

And also a good point above: complainants can't be required to wait forever if a respondent chooses to not show up.

In fact, this IS "due process". A complaint was made; the party was notified, appeared, and got it reversed. So you're just blatantly wrong trying to say that ex parte is NOT "due process", it's just the official beginning of it.

Re: Re: "Due process" in civil matters can mean a letter was mailed.

The problem is the immediate seizure. As I said above... if I complain that I think your car is mine, should the police take it from you right then and there, with no arguments allowed?

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OFF TOPIC. Stick to copyright infringement.

And you're even wrong! If /plausibly/ accused of stealing, then YES, you bet that the police will seize the car RIGHT AWAY. They also do it every day NON-plausibly if even vaguely related to a charge such as curb-crawling or selling drugs.

Legalistic Mike is for EVERY possible delay and dodge.

Opinions "Change When The Other Side Is Heard", too.

How about, can we get just a SLIGHT ACKNOWLEDGEMENT from you that IF an advertiser knows that a site where its advertisement are is promoting piracy, then it has a moral obligation to pull its advertisements? That's been standard practice forever -- and morality isn't different now because "on the Internet".

But Mike seeks only to DODGE ethical connections, to show only the poor pirates and their cohorts feeding off infringement.

As I somewhat forgot above, that's why this 2nd piece so soon following on same case. EVERY time Mike finds opportunity to excuse and enable and extend and facilitate copyright infringement, he takes it. Not really arguable that he's pro-pirate.

Re: Legalistic Mike is for EVERY possible delay and dodge.

No one is denying here that the ad server company KNEW or even should have known that infringement had taken or was taking place on their client's site. Party A (the ad server) cannot be held responsible for the behaviour of Party B ( the web site) in any event but even more-so when they didn't know.

The publisher never bothered to send them a cease and desist letter or request before traipsing off to court. Nor to we know that the ad server would have resisted that request. If it were me I'd look into it, if I got the same impression the publisher had I'd have disconnected them. I'm not going to war over a $17/month account.

Morally (your word) the publisher had an obligation to send that notice. Due process demands that they were obligated to send that notice. Due process and morality both demand that both parties attempt a settlement before heading off to waste valuable court time. It never happened in this case. If I didn't know better I'd be beginning to wonder if you weren't the publisher's lawyer.

This has nothing to do with piracy. It has everything to do with law, due process and moral behaviour on both sides. The publisher failed on all counts.

If that's pro-piracy, I can live with that. If that makes me pro-piracy I can live with that too. I'd rather live under the rule of law than your twisted version of that that just might be and your view of the issue and the world in pure black and white, also known as binary thinking.

Me, I vote for the rule of law as it has evolved over the past thousand years. It does things better than you or I could and far better than COPA/IP PROTECT will. You'd rather pull out the sword and scream "set loose the dogs of war!" at the slightest suggestion that something might be, could be, possibly be, I had a dream about it be.

It's stances like yours that damage the entire concept of intellectual property than all the pirates in the world could ever accomplish. And that is NOT moral or ethical either.

Re: Legalistic Mike is for EVERY possible delay and dodge.

Also, might I be allowed to point out that most of your audience will scratch it's collective head at the use of "legalistic" in an insult context. It just won't make any sense to non-lawyers.

But, by all means, do what thou wilt, mate! But as our Savior said, he that liveth by the sword, shall die by the sword. It's an allegory, for those too legalistic to realize. It means, essentially, that the universe has a perverse way of inflicting harm on those who willfully inflict harm on others.

Mike, due process doesn't mean instant process. What happened with the ICE seizures is just PART of the process, not the conclusion of a process. Due process is happening (see the Roja case you have highlighted), just not at internet speed.

What is clear is that the vast majority of the sites seized are operated by people / companies with no desire to fight for them legally, or have received legal advice that going through the process isn't going to help them. That the defendants aren't working on the "due process" tells you everything you need to know.

Re:

What is clear is that the vast majority of the sites seized are operated by people / companies with no desire to fight for them legally, or have received legal advice that going through the process isn't going to help them.

Actually, that is not clear at all. Are you just making stuff up to justify things?

It was my understanding that a lot of the sites seized for copyright violations are fighting these seizures.

Re: Re: Re:

Re:

Efficiently punishing someone for a wrong doing they have been accused of with no legal process (except an ministrative court hearing, the same kind they use if they need a warrant to search someones house) and then getting sued is not due process.

People let their neighbors problems go on avoiding idealing with justice, easier to just call the hurting people crazy

I was not heard in court per a evil violent ploy pulled off by X
(see Federal Law Violence Against Women Act it is bias against men and denies men all civil rights and in that process denies the children too BOTH at the time do not realize the ploy used to make men look violent; per being left in a daze it too years for I to realize it all. this ploy is unbelievable, thus sane people do not believe, THAT TOO BEING PART OF THE PLOY, unfortunately it appears the courts and attorneys know about this but it make them $$$.)

to continue ... thus children and I have been greatly damaged and alienated for life ALL PER LIES and said ploy.
Society at large does not care to hear either. People apparently to avoid having to deal with or think about BAD THAT HAPPENS TO ONE dismiss it, by pushing it back at I, saying it all my fault, you must of caused it and are in denial. Now as with many, no putting it right. WHO CARES?